Arbitration cases for the recovery of payment under a supply agreement are very common, in particular in the Moscow Arbitration Court, because metropolitan suppliers and buyers carry out a significant turnover of products and goods relative to the size of the country. Initially, the heads of organizations assume that this category of disputes is quite simple and clear, unlike many others (providing services, building contract, agency, transport expedition, etc.). However, arbitration lawyers who specialize in this category of cases know that each specific case has a number of distinctive features which, with a competent approach to the formation of a legal position in court, can be decisive in order to win even an initially hopeless dispute.
What is the supply contract itself, what are its essential terms, what disagreements arise between the parties and how are they resolved? How can the supplier prove that he delivered the goods of proper quality, and how can the buyer refute this circumstance? Consideration of arbitration disputes arising from relations for the supply of goods, in particular, the procedure for collecting payment in judicial order will be described in this article.
A supply contract is a type of contract of sale, under which the seller-supplier undertakes to transfer goods (products, materials, equipment) to the buyer-recipient for use within a specified period of time. for commercial purposes. At the same time, it does not matter whether the supplier is the manufacturer of the goods or purchases them. For the qualification of the contract, the acquisition by the buyer of the goods for its use for business purposes is of fundamental importance. If the parties to the transaction have not settled the terms for the delivery of consignments of goods, then it is delivered in equal consignments on a monthly basis, unless otherwise follows from the customs of business or the law. Initially, the obligation to deliver the goods to the buyer or the persons indicated by him lies with the seller. However, in the supply contract, the parties may provide for "selection of goods" - the receipt by the buyer at the place indicated by the seller or from the seller himself.
By analogy with other contractual relationships, the buyer of the goods has an obligation to check and perform other actions aimed at receiving the goods within the prescribed period. Also, a limited period must be agreed upon for filing claims for the quality of the delivered goods (not under warranty). The Civil Code of the Russian Federation (Article 513) indicates that such verification and notification of the supplier of product defects must occur immediately. In the event of a justified non-acceptance of the actually received (transferred) goods, the buyer must ensure its responsible storage, the costs of which are borne by the seller, duly notified of these disagreements. If the buyer does not declare, in accordance with the law or the contract, to refuse to accept the goods actually received or does not accept the delivered goods within the period established by the contract or within a reasonable time, the supplier has the right to demand payment for the delivered goods in full.
The subject of proof when applying to the supplier court of Arbitration with a claim for recovery Money under the supply agreement with the buyer is the fact of receipt of the goods by the latter. In the vast majority of cases, such evidence is the waybill (TN) and the consignment note (TTN), where the supplier and buyer's marks on the transfer of goods are affixed. In the absence of such, the arbitration lawyer must evaluate in the aggregate all the available evidence in the case, taking into account the fact that in the arbitration court such evidence is documents, and not the testimony of witnesses. The basis of the requirements should be the contract and the main provisions of the Civil Code of the Russian Federation on obligations and the terms of the concluded contract. At recognition by the court of the supply contract as not concluded, as a general rule, debt collection is carried out in accordance with the norms of the Civil Code of the Russian Federation on unjust enrichment (Article 1102).
Claims for the recovery of payment under the supply agreement are considered in the arbitration court according to the above rules, however, a number of disagreements that are directly unsettled by law arise, which I will discuss below.
During the execution of the contract, it happens that the supplier deviates from stipulated by the agreement, specification, application and other document of the volume, characteristics and configuration of the required product. The supplier is not entitled to charge the cost of goods delivered in excess of the volume provided by the parties, or goods that are not the subject of the contract.
If the buyer of the delivered goods specified in the supply contract does not pay for it, then the collection of payment - the cost of the goods is allowed with the actual recipient (beneficiary) under the transaction, who owns the goods. At the same time, the supply of goods to a third party in itself does not give the supplier the right to demand payment from the third party, and not from the buyer under the contract.
Buyer's refusal to accept goods of inadequate quality should be reflected in the relevant act, the sample of which should be established by the annex to the contract. In the absence of a sample, the act must contain indications of specific inconsistencies in the delivered products. If possible, all non-compliance with GOSTs and other standards and conditions should be reflected. As I pointed out above, it is the buyer's inalienable duty to properly (by registered mail) declare to the supplier about the defects of the goods. The same situation develops with the incompleteness of the delivered goods. Even with the delivery of all the main parts of the kit provided for by the contract, and in the absence of minor individual components, goods are found to be defective. A penalty for late delivery of goods, depending on the terms of the concluded contract, in some cases may be charged until the moment of actual delivery and not be limited by the term of the contract.
The refusal of the supplier to eliminate within a reasonable time the defects of the delivered goods or to complete them may serve as a basis for the buyer to file a claim for the recovery of the difference overpaid another supplier for the supply of the goods provided for in the original contract. In case of violations of this nature, the buyer has the right to refuse to fulfill the concluded contract and terminate it, while recovering in court the cost of all paid goods.
Termination of the supply contract in court occurs according to the general rule provided for in Art. 450 of the Civil Code of the Russian Federation - in case of a significant violation of the terms of the contract by the other party.
The practice of working on arbitration cases arising from a supply contract shows that the number of contentious issues is much wider than I listed in the article. Therefore, to discuss the controversial issues that have arisen, please use the comment form below or contact me personally through the feedback form.
The submitted statement of claim is aimed at collecting debt under the supply agreement.
In the theory of jurisprudence, it is believed that the statement of claim has two main elements: the subject and the basis of the claim.
The subject of any statement of claim is the violated right of the subject, in this case it is the right to receive money from the debtor for the supply of goods to him, as well as interest for the use of other people's money. Thus, the subject of the statement of claim is the requirement contained in it, what the statement of claim is aimed at (for example, the recovery of money under a supply contract).
The basis of the claim is the factual circumstances - legal facts, with the occurrence of which the emergence of a specific right of the subject is associated, in our case, this is the right to receive payment for the supply of goods, and evidence confirming such circumstances.
The actual circumstances of legal significance in our case include:
- the existence of a concluded supply agreement,
- the fact of delivery of goods, confirmed by waybills, acceptance certificates or consignment notes,
- failure by the defendant to fulfill the obligation to pay for services within the terms established by the contract,
- rules of law (for example, articles of chapter 30 of the Civil Code of Russia), which must be indicated in the statement of claim (in accordance with article 125 of the Arbitration Procedure Code of Russia, the statement of claim indicates not only the claims of the plaintiff, but also a reference to the law, which provides for such methods of protection rights).
In addition to the specified main elements of the statement of claim, the presence of others provided for in Article 125 of the Arbitration Procedure Code of Russia is mandatory. For example, it is mandatory to indicate in the statement of claim the name of the arbitration court where the claim is filed, the name of the plaintiff, debtor, their location addresses, the price of the claim, its calculation, information on compliance with the claim procedure, the list of attached documents.
Sample statement of claim for the recovery of debt under a supply agreement:
To the Arbitration Court of the Ivanovo Region
153022, Ivanovo, st. B. Khmelnitsky 59-bzx
Plaintiff: ________________________________
Respondent: _____________________________
Address: ________________________________
The price of the claim: 44,212 rubles 80 kopecks.
State. duty: 2000 rubles.
STATEMENT OF CLAIM
on debt collection
08/14/2015 Between __________________________ (hereinafter referred to as the Claimant) and _______________________ (hereinafter referred to as the Respondent) a supply agreement was concluded with a deferred payment No. 50 dated August 14, 2015, in accordance with which the Claimant undertook to transfer into the Respondent's ownership, and the Respondent to accept and pay for the goods: Redverg RD Vibrorail – SF1 in the amount of 1 pc. in the amount of 36,600 (thirty six thousand six hundred) rubles 00 kopecks (including VAT).
In order to fulfill this agreement, the Claimant delivered to the Respondent the goods provided for in the contract in the amount of 36,600 (thirty-six thousand six hundred) rubles 00 kopecks (including VAT), which is confirmed by waybill No. 171 dated 28.08.2015. and invoice - invoice No. 170 dated 28.08.2015.
The goods were accepted by the Respondent, as evidenced by the signing of the consignment note by him. The same fact testifies to the absence of claims by the Respondent regarding the quantity, assortment, price and condition of the goods.
In accordance with clause 3.14. of the agreement, acceptance of the goods by quality (except for hidden and manufacturing defects) is carried out by the Buyer within 14 (fourteen) calendar days from the date of its receipt. The absence within the specified period of the Claimant's statement of the Respondent about the supply of low-quality products indicates the absence of claims to the quality of the goods on the part of the Respondent.
Thus, the Claimant fulfilled its obligation to transfer the goods to the Respondent's property in full.
In accordance with clause 2.2. of the contract, the Respondent is obliged to make payment no later than two weeks from the date of receipt of the goods and the invoice of the Claimant.
The defendant did not fulfill the obligation to pay within the period stipulated by the contract.
The amount of the Respondent's debt to the Claimant under the agreement is 36,600 (thirty six thousand six hundred rubles) 00 kopecks (including VAT).
In accordance with Art. 309 of the Civil Code of the Russian Federation, obligations must be performed properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with customs or other usually imposed requirements.
In accordance with Art. 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation and a unilateral change in its conditions are not allowed, except as otherwise provided by law. Unilateral refusal to fulfill an obligation related to the fulfillment by its parties entrepreneurial activity, and a unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation.
In accordance with Article.Article. 454, 486 of the Civil Code Russian Federation the buyer is obliged to pay for the goods immediately before or after the seller transfers the goods to him, unless otherwise provided by law or the contract.
In paragraph 4.2. of the agreement, the parties have established that in case of late payment for the received goods, the Supplier has the right to demand in writing from the Buyer the payment of a penalty at the rate of 0.1% of the unpaid amount for each calendar day of delay in payment.
The penalty for the period from 09/12/2015 to 04/08/2015 is 7,612.80 (seven thousand six hundred twelve) rubles 80 (eighty) kopecks.
Calculation of the collected amount of money:
The delay from 09/14/2015 to 04/08/2016 amounted to 208 days.
36600 (principal amount) * 0.1% (fine amount) = 36.6 rubles (for one day of delay)
36.6 rubles * 208 (number of days of delay) \u003d 7,612.80 rubles.
In accordance with Article 12 of the Civil Code of the Russian Federation, one of the ways to protect the right is to award a duty in kind.
Based on the foregoing, and guided by Article.Article. 12, 309, 310, 330, 331, 394 of the Civil Code of the Russian Federation, art. 4, 125, 126, 106, 110 APC RF
1. To collect from the Respondent in favor of the Claimant the amount of the principal debt in the amount of 36,600 (thirty six thousand six hundred) rubles.
2. To recover from the Respondent in favor of the Claimant a penalty for failure to fulfill an obligation under the contract in the amount of 7,612 (seven thousand six hundred and twelve) rubles 80 (eighty) kopecks.
3. To recover from the Respondent in favor of the Claimant the costs of paying the state fee in the amount of 2,000 rubles (two thousand) rubles.
4. Collect from the Respondent in favor of the Claimant the costs of legal services in the amount of 5,000 (five thousand) rubles.
Applications:
1. Supply contract No. 50 dated 14.08.2015
2. Consignment note No. 171 dated 28.08.2015
3. Invoice No. 170 dated August 28, 2015.
4. Act of reconciliation of mutual settlements as of December 31, 2015.
5. A document confirming the sending to the Respondent of a copy of the statement of claim and the documents attached to it.
6. A document confirming the payment of the state. duties.
7. A document confirming payment for legal services.
8. A document confirming the authority to sign the statement of claim.
9. Certificate of state registration Claimant.
10. Extracts from a single state register legal entities indicating information about the location of the Claimant and the Respondent, obtained from the official website of the Federal Tax Service of Russia.
____________/_________________________/
"____" _____________ 2016
ARBITRATION COURT OF THE SVERDLOVSK REGION
620075 Yekaterinburg, st. Shartashskaya, 4,
www.ekaterinburg.arbitr.ru e-mail: [email protected]
In the name of the Russian Federation
SOLUTION
Court of Arbitration Sverdlovsk region as a member of judge S.N. Vodolazskaya, considered the case on the claim of the joint-stock company "Steel Industrial Company" (TIN 6671197148, OGRN 1069671052868)
to Joint Stock Company "TESS" represented by the branch "TESS-Nizhnevartovsk" (TIN 8603115133, OGRN 1048600507757)
on the recovery of debt under the supply agreement and penalties for late payment,
The case was considered in summary proceedings without calling the parties after the expiration of the time limits established by the court for the presentation of evidence and other documents in accordance with Chapter 29 of the Arbitration Procedure Code of the Russian Federation.
The persons participating in the case were duly notified of the acceptance of the statement of claim, initiation of proceedings and consideration of the case in summary proceedings, including publicly, by posting information on the website of the court.
No waivers were given to the court.
JSC "Steel Industrial Company" filed a lawsuit with the Arbitration Court of the Sverdlovsk Region against the joint-stock company "TESS" represented by the branch "TESS-Nizhnevartovsk" for the recovery of 254,877 rubles. 00 kopecks, including 250,995 rubles. 00 kop. - arrears in payment for products supplied under the supply agreement No. NV / 2015/68 dated 09/06/2015, and 3882 rubles. 56 kop. - penalties accrued for late payment for the period from 01/01/2016 to 01/29/2016 with the accrual of the penalty until the day the decision is made.
The defendant filed a motion to hear the case general rules claim proceedings, refers to the violation by the plaintiff of a counter obligation under the contract - violation of the delivery time. In addition, the defendant believes the amount of the penalty is disproportionate to the consequences of the violation of the obligation, filed a petition for the court to apply Art. of the Civil Code of the Russian Federation and a reduction in the amount of the penalty.
The defendant's petition for consideration of the case according to the general rules of action proceedings has been considered by the court, the court considers it possible to refuse to satisfy it, since there are no circumstances that are the basis for proceeding to the consideration of the case according to the general rules of action proceedings, established by Part 5 of Art. . The presence on the part of the defendant of objections to the claim and the consideration of the case in the order of summary proceedings is not an independent basis for the transition to the consideration of the case in the general order.
Having considered the materials of the case, examining the evidence presented, the arbitration court
SET UP:
As follows from the materials of the case, between the Joint Stock Company "Steel Industrial Company" (supplier) and the joint stock company "TESS" represented by the branch "TESS-Nizhnevartovsk" (buyer) on September 6, 2015, a supply agreement No. НВ/2015/68 was concluded in the wording of the protocol for reconciling disagreements , in accordance with the terms of which the supplier undertakes to deliver, and the buyer undertakes to accept and pay for the products in accordance with the terms of this agreement (clause 1.1 of the agreement).
The name, assortment, quantity and price of products for each batch of goods are agreed by the parties in the annexes to this agreement (specification and (or) accepted by the buyer in accordance with part 3 of article supplier's invoice) (clause 1.2 of the agreement).
In pursuance of the terms of the contract dated 06.09.2015 joint-stock company"Steel Industrial Company" supplied the defendant with goods in the amount of 250,996 rubles. 00 kopecks, which is confirmed by the consignment notes No. 375719/102602 of 01.12.2015, No. 375724/102602 of 01.12.2015, No. 375731/102602 of 01.12.2015, No. 390382/102602 of 16.12.2015, No. 390382/102602 of 16.12.2015 /102602 dated 12/16/2015, No. 390396/102602 dated 12/16/2015.
Waybills contain information about the name, quantity, price of the goods, the signatures of the persons who released the goods and the person who accepted the goods.
The transfer of the goods to the defendant is certified by the indicated invoices signed by the authorized employee of the defendant, acting under powers of attorney No. 1137 of 01.12.2015 and No. 845 of 11.09.2015 Therefore, these documents, signed by the defendant, indicate that the signatories have the appropriate powers, and the defendant agrees with the quantity and value of the goods received.
Receipt of the goods by the defendant according to Art. The Arbitration Procedure Code of the Russian Federation has not been challenged.
Thus it is based on the assessment of all available evidence in the case in their totality and relationship in accordance with Part. 2 Article. Arbitration Procedure Code of the Russian Federation, the court considers proven the fact of transfer of products to the defendant.
Judicial practice on the application of the norm of Art. 333 of the Civil Code of the Russian Federation
Changes: January, 2019
Debt under the supply agreement — a situation that often takes place in the cooperation of two parties (customer and supplier), and the main reason is the failure of the recipient or seller to fulfill their obligations. In such a situation, one of the solutions is to file a claim and go to court. The question is how to do it right, and what does arbitrage practice. Let's consider these points in more detail.
The basis of cooperation between the buyer and the supplier is the supply contract, which is considered one of the varieties of the sale and purchase agreement. Under this document, the seller undertakes to transfer products, equipment or materials to the other party to the agreement, the recipient, within a certain period. The latter has the right to use the goods for commercial purposes. Interestingly, the role of the supplier in obtaining the goods does not matter - he can buy it at a lower price or personally engage in production.
In order for the contract to be classified as "deliverable", the recipient of the object of the transaction must use it for commercial (entrepreneurial) purposes. If the parties to the transaction have not agreed on the terms for the transfer of goods, it is delivered once a month in equal batches. If there are other conditions in the legislation or the contract, this parameter may be different. Initially, the task of supplying the products is performed by the seller, but the agreement may provide for a "pick-up" when the buyer personally arrives at a certain place and personally receives the goods.
In accordance with the law, the buyer is obliged to check or carry out other measures regarding the receipt of the goods within a certain period. In addition, the agreement stipulates the period in which a claim for debt under the supply contract or for the timing of the transfer of goods can be drawn up. Also, the recipient of the products has the right to check the quality of the goods and, taking into account the norms prescribed in the Civil Code of the Russian Federation (Article 513), notify the supplier of the low quality of the products (if any).
If the buyer has made a reasonable decision not to accept the delivered product (goods), he is obliged to ensure its storage. In this case, the financial costs are borne by the seller, who picks up the goods and pays for the services of the recipient. In turn, the buyer must notify the existence of claims in advance and indicate the reason why he does not accept the products.
If the recipient does not inform the supplier of the refusal to accept the goods within the period established by the agreement, the seller has the right to demand the full amount of payments, regardless of the quality of the products, under the law or subject to the terms of the supply contract.
It should be noted that in case of inadequate product quality, the buyer must issue a refusal in writing. Here a special act is filled out according to the model, which is indicated in the appendix to the agreement of the parties. In the absence of such, the act must contain information on specific non-compliance of the goods with the declared requirements. If possible, all deviations should be "tied" to current conditions, norms or GOSTs.
The recipient must not only notify the supplier of the fact of poor product quality, but also document this. Information, as a rule, is drawn up and sent by registered mail. Similarly, the situation associated with the incompleteness of the delivered products is solved. The buyer has the right to return the goods in case of any deviation of the scope of delivery from what is reflected in the contract. Even in the absence of a small number of elements, the incompleteness of the object of the transaction is recognized. As a result, a penalty is charged for late delivery, taking into account the conditions that are stipulated in the agreement between the parties. Sometimes the penalty is charged before the day of actual delivery and is not limited by the term of the agreement.
If the supplier does not eliminate the defects within the agreed (reasonable) period, including understaffing the goods, the recipient has the right to go to court and demand the recovery of the difference in the cost of the ordered and actually received products. Breach of obligations allows the aggrieved party to refuse to fulfill obligations and terminate the agreement. In this case, the full cost of the object of the transaction is charged through the court.
In general, the subject of proceedings in court under a supply contract may be:
Another situation is also possible, when the goods are received, meet all the requirements, but payment is not made. In such a situation, a statement of claim is also drawn up for the recovery of debt under the supply agreement. This is relevant in cases where the parties cannot resolve the problem without going to court.
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A "delivery" contract is always drawn up in writing. Otherwise, it has no legal effect. The agreement may be in the form of one or more documents. Papers that are directly related to the contract are transferred personally, with the help of Email or by fax. Based on judicial practice, it is desirable to draw up a single contract, which contains the signatures of the participants and the wet seals of the participating organizations. With this design, the court will have fewer questions regarding the legality and relevance of the contractual relationship between the parties.
The supply contract must reflect the characteristics of the goods (volume and name), as well as the exact timing of the transfer of the object of the transaction. If the agreement is designed not for one, but for several deliveries in a certain time period or for a specific volume of goods, information on products and terms is written in the contract in general form. More details can be found in the appendix to the contract. In addition, each sheet is "attached" to a specific delivery. If the supplier files a lawsuit with a desire to collect debts under the contract, he must present not only the “body” of the contract, but also the annexes (specifications). In this case, the judicial authority can accurately determine the fact of the lack of delivery or refusal of payment.
One of key points in the agreement is an indication of the quality parameters of the goods. In judicial practice, debt collection is carried out not only because of the lack of delivery of goods, but also because of its poor quality. In the latter case, the buyer bears the losses and is entitled to demand their compensation. This is easy to explain, because the recipient received the goods, but he cannot resell them.
Special attention should be paid to the procedure for settlements between the parties, as well as penalties for late payment. But it is worth considering that trial often stretches for a long time and takes from one month to six months. As a result, on total amount debts are running up high interest. The same situation occurs in the case when the supplier has transferred goods of poor quality.
In arbitration law, compliance with the dispute resolution procedure specified in the supply contract is of key importance. That is why any proceedings in the relationship between the supplier and the buyer begin with a claim to the party that violated the terms of the agreement. The document clearly sets out the claims and requirements with reference to the paragraphs of the document or annexes that have been violated. If there are none, the claim is made with reference to the norms of the law.
In addition, the claim indicates the amount of the current debt, as well as information on the collection of additional penalties, namely penalties or fines. We must not forget about other items of expenditure - the payment of state duty and payment for the services of lawyers representing interests in court. As a result, the initial payout increases.
In practice, there are many cases when, after receiving a claim with all the consequences of non-payment of the debt, the counterparty took active steps to cover debt obligations. If this does not happen, a lawsuit is being prepared to collect the debt through the court. The document is submitted to the arbitration court, which is located at the place of residence of the respondent party. It is allowed to apply to an authority “tied” to the legal address of the debtor. If the party to the contract is a representative office or branch of the company, you must focus on its address.
When drawing up a statement of claim, it is necessary to focus on the requirements of the APC of the Russian Federation (Article 125). The document is compiled according to a certain pattern, which is easy to find on the Web. The documents listed in the article mentioned above are attached to the application, namely:
It is worth considering that financial papers must be presented as originals. In addition to the mentioned documents, a petition for the application of security measures or the retrieval of evidence can be attached to the statement of claim. If necessary, this can be done immediately or already during the process.
If the claim is executed in compliance with the necessary rules, and the required package of papers is attached to it, the court accepts the documents for consideration and determines the date of the trial. If there are errors, the claim may be sent for revision or it may “hang” without consideration. In the latter case, the plaintiff will be asked to amend and report required package papers. Only then does the full trial begin.
When filing a claim with an arbitration court, it is important to understand that the process does not take one day. As noted above, it can take several months. If there is no money on the debtor's accounts, the execution of the court decision will take no less time. In addition, during the proceedings, the court may have additional questions to which it is important to respond quickly. If additional evidence is required, it will have to be provided promptly. Possible situations when "surprises" are presented by the opposite side.
That is why such cases should be conducted with the involvement of experienced lawyers who know the nuances of the procedure for collecting debt under a supply agreement, have experience in resolving such issues and are able to respond to court requirements in a timely manner. In addition, experienced lawyers are contacted not only for these issues, but also for solving a number of other tasks - debt collection under a lease or contract.
When drawing up a contractual relationship for the supply of goods, along with the main obligations (prepayment, terms and specifications), conditions regarding the penalty should be provided. This term is synonymous with the same penalty or fine that the debtor must transfer to the creditor in case of failure to fulfill the obligations specified in the contract, or in case of their fulfillment, but in an improper form. Penalty may also be charged in case of delay in fulfilling obligations. The parties have the right to limit the amount of the penalty, but subject to reasonable limits.
Thus, the supply contract reflects the period by which the penalty must be accrued, the cases and amount of the payment of the fine, especially the payment of the penalty for non-fulfillment of obligations. If the agreement does not contain this information, the collection of funds is carried out taking into account the norms prescribed in Article 395 of the Civil Code of the Russian Federation.
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A commercial transaction under a supply agreement is made in accordance with the conditions established by the document. The contract defines the obligations and rights of the parties - the supplier and the buyer. Reaching an agreement by the parties on essential conditions and the introduction of provisions into the contract with certification by signatures serves as confirmation of the fact of the conclusion of the document.
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To mandatory provisions contracts include:
A detailed description of the terms of delivery allows you to make claims in case of violation of obligations, which include delay in paying the debt. The essential provisions include only the subject and terms of delivery, in the absence of which the contract may be recognized as not concluded. Other items are important requirements of the contract and are taken into account when collecting funds in case of non-compliance with the conditions.
The main points of the supply agreement are determined by the seller of products (goods, equipment) (hereinafter referred to as products) in agreement with the buyer. In case of violation of the terms of the contract, the need to recover funds may arise from each of the parties. Disputes under economic contracts are considered by the Arbitration Court, located in the territory of the buyer's region.
Debt collection is carried out under a supply agreement or without its conclusion. If there are shipping documents confirming the fact of shipment and receipt of products by the buyer, the supply contract is considered to be concluded orally. The date of transfer of rights to products is the day indicated by the responsible person upon receipt of the values.
An additional confirmation of the debt is an act of reconciliation between partners, and violation of the delivery time specified by the contract is the main subject for challenging and returning funds
According to the terms of the contract accounts payable the buyer arises in the following cases:
Long-term contracts are characterized by the use of appendices describing a specific delivery. At the same time, for the receipt of products in batches, the terms established by the contractual conditions apply. The calculation of the term for payment or making a preliminary payment is calculated from the date of shipment of the products, determined by an additional agreement for a separate delivery.
The overdue accounts payable of the buyer are also subject to claims for the recovery of debt under the supply agreement. Claiming the buyer's debt is made in the event of a delay in payment in the case of a commodity loan. The parties include in the contractual provisions a clause on the accrual of sanctions in case of late payment. The absence of a condition on sanctions means the use of the provisions of the Civil Code of the Russian Federation on violation of the payment deadline.
When concluding an agreement between the supplier and the buyer, it is necessary to take into account the moment of transfer of ownership. Responsible persons have the right to certify the transfer of goods and materials, whose signature forgery can lead to the cancellation of the validity and legality of the document.
The most commonly used options include:
The transfer of title to products allows you to determine the period of delay in delivery and payment, if the payment period is calculated from the date of receipt of the products. Confirmation of the transfer of rights is a certificate of the fact of receipt material assets the signature of the responsible person with a transcript and date in the shipping documents.
A claim is filed in a property dispute for the recovery of funds for delivery on the basis of determining the right of a person to receive goods and materials. Responsible persons are employees who have the right in accordance with their position or are vested with it on the basis of a power of attorney issued in compliance with the rules.
The power of attorney for the receipt of goods and materials includes the data of the enterprise, person and products, the period of validity of the document, the signature of the head, the person and the seal of the enterprise.
Upon dismissal of an employee with a power of attorney long term action issued for several deliveries, the document must be revoked.
Arbitration jurisprudence has cases of refusal to reimburse the costs of supplies received by a trustee dismissed from the enterprise. The fault of the buyer for the untimely notification of the partner has been proven. The supplier received payment for the products based on the ruling.
The documents accompanying the delivery are the basis and evidence base for filing a claim for debt collection. Forms drawn up in compliance with the requirements of the legislation are accepted. If the documents are drawn up in foreign currency, it is necessary to submit a certificate of translation into rubles.
When considering documents, the following are taken into account:
Most often, the courts consider claims relating to untimely payments by buyers for a delivery, the amount of goods of which is determined. During the court session, the fact of delivery and receipt of goods by the buyer is confirmed.
When considering a claim, the courts additionally study the solvency of the buyer and the possibility of making a payment
The evidence base includes:
Copies of documents certified in the established order are accepted - if there is a seal, signature and decryption of the data of the head or individual entrepreneur. The composition of the documents is determined individual conditions specific debt. The selection of the evidence base is made depending on the direction of the requirements of the claim.
Before filing a claim with the judicial authority, it is necessary to make an attempt to agree on the repayment of the debt without contacting the authority. The creditor can send letters with a reminder of the debt, reconcile. In the absence of a response, the provision of a letter of guarantee and other approvals of the payment schedule, it is necessary to apply to the judicial authority.
There is no specially developed form for the statement of claim. Claims are expressed in any form with obligatory observance principles of business writing. The document indicates the name of the court, the data of the plaintiff, the defendant.
The claim must detail the subject of the claims, the legal grounds and the claims expressed in monetary terms. Type sample can be found on legal websites.
The debt collection procedure should be carried out in several stages, including pre-trial actions. The positive result of actions depends on the timeliness and correct passage of the stages.
The lender must:
When applying for help to lawyers, the preparation of documents and participation in the meeting is carried out by specialists. A professional approach increases the chances of a positive result.
Evasion of partners from the fulfillment of obligations in some cases cannot be avoided without the participation of a judicial authority. Claims made by the creditor may be ignored and left without execution. The decision of the judicial authority on recovery is a more effective means if the defendant has money or property sold on account of the debt.
The filing of a statement of claim with the court is preceded by the preparation of a written claim against the debtor. Starting from June 2019, the document is mandatory for the pre-trial procedure for filing a claim.
